McGowan v. Commonwealth

• Decision Date: 20 June 2006
• Docket Number: Record No. 0412-05-1.
• Citation: 48 Va. App. 333,630 S.E.2d 758
• Parties: Kyna Chanelle McGOWAN, s/k/a Kyna Chanele McGowan v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

630 S.E.2d 758

48 Va. App. 333

Kyna Chanelle McGOWAN, s/k/a Kyna Chanele McGowan v. COMMONWEALTH of Virginia.

Record No. 0412-05-1.

Court of Appeals of Virginia, Chesapeake.

June 20, 2006.

Charles E. Haden, for appellant.

Alice T. Armstrong, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS and KELSEY, JJ.

ROBERT J. HUMPHREYS, Judge.

Kyna Chanelle McGowan (McGowan) appeals her jury conviction for distribution of cocaine, in violation of Code § 18.2-248. McGowan argues that the trial court abused its discretion in admitting evidence of a subsequent drug offense. For the following reasons, we disagree, and affirm.

BACKGROUND

"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the evidence established the following.

On March 4, 2004, James McCoy (McCoy), an undercover agent working with the Hampton Police Department's Special Investigations Unit, conducted a controlled buy as part of an operation to interdict street-level drug sales.¹ McCoy drove to a shopping center that was known to be a high drug area. There, Saroyal Booker (Booker) approached McCoy's car. Booker asked McCoy if "he was looking," and McCoy answered "yes." Booker asked what he needed, and McCoy responded "a 20 rock." She told him to follow her because her "girl [was] across the street at McDonald's."

Upon arriving at the McDonald's parking lot, McCoy saw Booker approach McGowan, who was sitting on a picnic table. They talked, and McGowan reached into her "bra area" and handed something to Booker.² McGowan returned to the picnic table, and Booker walked to McCoy's car. Booker gave McCoy two rocks of crack-cocaine in exchange for a twenty-dollar bill. Booker then approached McGowan, and another "transaction" occurred between them. After the exchange, Booker went inside McDonald's, and McGowan left the picnic area.³

On July 6, 2004, the City of Hampton Grand Jury indicted McGowan for distribution of cocaine, and, on July 13, 2004, Hampton police officers arrested McGowan. Upon McGowan's arrest, Detective Christine Saunders ("Saunders") conducted a search incident to arrest. During the search, Saunders found two rocks of crack-cocaine inside of McGowan's bra.⁴

Before trial, the Commonwealth filed a motion in limine seeking to introduce the cocaine discovered on McGowan's person during the search incident to her arrest. The trial judge denied the motion, prohibiting the introduction of the evidence during the Commonwealth's case-in-chief. However, at the Commonwealth's request, the judge reserved ruling on the issue of whether the Commonwealth could introduce the evidence in rebuttal in the event McGowan chose to testify.

During McGowan's jury trial for the charge of distribution of cocaine, McGowan took the stand in her defense. During cross-examination by the Commonwealth, the following exchange took place:

[COMMONWEALTH:] Do you know what crack cocaine is?

[McGOWAN:] No.

[COMMONWEALTH:] On March the 4th, 2004, did you possess crack cocaine?

[McGOWAN:] No.

[COMMONWEALTH:] So you wouldn't know crack cocaine if you saw it?

[McGOWAN:] I sure wouldn't.

[COMMONWEALTH:] So when you were arrested on July 13th, 2004, did you have any crack cocaine on your person?

[McGOWAN:] No.

McGowan objected to the last question, arguing that "[i]t goes directly to what the court has already ruled." However, the trial judge overruled the objection, reasoning that McGowan did not object to the original line of questions concerning her lack of knowledge of crack-cocaine and, thus, opened the door to the other crimes evidence.⁵ The Commonwealth concluded its cross-examination of McGowan by asking the following:

[COMMONWEALTH:] Ms. McGowan, is it your testimony today that when you were arrested on July 13th, 2004 on the direct indictment for distribution of cocaine that you did not have two individually items—two individually wrapped items which appeared to be crack cocaine in your bra?

[McGOWAN:] No, I did not.

In rebuttal, the Commonwealth called Saunders, the officer who arrested McGowan for the July 13, 2004 incident. When asked whether McGowan had any drugs on her person at the time of her arrest, Saunders stated that, during the search, McGowan "turned her back, reached down into her bra and handed me two items both of which I believed to be crack cocaine."

The trial judge provided the following limiting instruction, pertaining to McGowan's cocaine possession on the day of her arrest:

You may consider evidence that the defendant committed an offense other than the offense for which she is on trial only as evidence of the defendant's intent, opportunity or as evidence of the absence of mistake or accident on the part of the defendant in connection with the offense for which she is on trial and for no other purpose.

The jury convicted McGowan of distributing cocaine, in violation of Code § 18.2-248. The trial court sentenced McGowan to five years in prison and imposed a $5,000 fine. This appeal followed.

ANALYSIS

On appeal, McGowan argues that the trial court abused its discretion by admitting "other crimes" evidence. Specifically, McGowan contends that the "other crimes" evidence concerning her July 13 cocaine possession "had little probative value and created an undue risk of prejudice." Moreover, she argues that the evidence had the substantive effect of implying "to the jury that [she] had a history of drug dealing and a propensity to sell drugs, even though [she] had never been convicted of a drug offense or other felony." We disagree.

A. The Evidence of a Subsequent Possession of Cocaine Was Admissible "Other Crimes" Evidence

Appellate review "of the admissibility of evidence is within the broad discretion of the trial court, and its ruling thereon will not be disturbed on appeal in the absence of an abuse of discretion." Auer v. Commonwealth, 46 Va.App. 637, 643, 621 S.E.2d 140, 142 (2005).

"Generally, proof tending to show an accused committed other crimes at other times is incompetent and inadmissible for the purpose of showing commission of the particular crime charged." Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988) (citing Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)); see Sutphin v. Commonwealth, 1 Va.App. 241, 245, 337 S.E.2d 897, 899 (1985). An exception to the general rule of inadmissibility exists if the evidence "tends to prove any element of the offense charged, even though it also tends to show that the defendant is guilty of another crime." Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127 (1996). Thus, "evidence of other crimes is admissible to show the motive, intent, and knowledge of an accused when one or more of those elements is at issue in the trial of an offense." Bunch v. Commonwealth, 225 Va. 423, 437, 304 S.E.2d 271, 279 (1983).

Moreover, when a criminal defendant takes the witness stand and "denies complicity in the offense for which he is on trial, he opens the door for any questions on cross-examination that the trial court, in the exercise of its discretion, might find relevant to the issue of guilt or innocence." Satcher v. Commonwealth, 244 Va. 220, 251-52, 421 S.E.2d 821, 840 (1992); see Drumgoole v Commonwealth, 26 Va.App. 783, 786, 497 S.E.2d 159, 161 (1998). That "denial of complicity on the witness stand also open[s] the door for rebuttal evidence contradictory of the denial." Satcher, 244 Va. at 252, 421 S.E.2d at 840.

In this case, McGowan took the stand and, during her direct examination, patently denied possessing cocaine on March 4, 2004. On cross-examination, the Commonwealth asked McGowan, "Do you know what crack cocaine is?" McGowan answered, "No." McGowan argues that, although this question was appropriate to prove an essential element of the crime — specifically, knowledge — the question regarding her possession of cocaine on the date of her arrest elicited inadmissible other crimes evidence.⁶ Although we agree with the general proposition that other crimes evidence is generally inadmissible to prove one's propensity to commit the crime charged, see Woodfin, 236 Va. at 95, 372 S.E.2d at 380-81, we disagree with the implicit assertion that it remains inadmissible for purposes of rebuttal.

The Commonwealth bears the burden of proving every element of the crime charged. Specifically, the Commonwealth must prove McGowan knew the nature and character of the materials "[s]he was charged with distributing" and the "distribution of which [was] illegal." Anderson v. Commonwealth, 19 Va.App. 64, 67, 448 S.E.2d 888, 890 (1994). Here, McGowan's assertion that "she would not know cocaine if she saw it" calls into question the sufficiency of the Commonwealth's evidence regarding her knowledge of the nature and character of cocaine, thereby placing her knowledge of the nature and character of crack-cocaine at issue. Thus, the Commonwealth's evidence is hardly collateral to the issue of such knowledge, and falls within the exception permitting the introduction of other crimes evidence tending to establish an element of the crime charged. See Trogdon v. Commonwealth, 72 Va. (31 Gratt.) 862, 871-72 (1878) ("[W]henever the intent or guilty knowledge of a party is a material ingredient in the issue of the case. . . other acts and declarations of similar character tending to establish such intent or knowledge, are proper evidence."); see also United States v. Sykes, 977 F.2d 1242 (8th Cir.1992) (holding that possession of the same amount of PCP eight months later was relevant to show knowledge and intent for a prior offense).

Moreover, McGowan denied "complicity in the offense for which [she was] on trial." Satcher, 244 Va. at 252, 421 S.E.2d at 840. In fact, McGowan's response that sh...